Using the Government’s E-Verify Online Employment Eligibility Verification System

E-Verify for Employers: Advantages and Disadvantages

E-Verify is an online system operated by the U.S. Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows employers to verify the employment eligibility of its workers by comparing information entered by the employer against records available to those agencies. To participate in E-Verify, an employer must register in the system, execute a Memorandum of Understanding (MOU), designate a responsible officer, initiate training, and then maintain operation of E-Verify at each designated hiring site. Enrolling in and maintaining E-Verify records can be time-consuming, but can provide many useful benefits. Nearly half the states currently require employers to use E-Verify for at least some of its workforce.

Here are the key advantages and disadvantages of enrolling in E-Verify:

Advantages:

  • Legal Compliance & Risk Reduction: E-Verify helps employers confirm that employees are authorized to work in the U.S., reducing the risk of hiring unauthorized workers and facing potential legal penalties. It helps companies avoid receiving Social Security “No-Match” letters. It also provides a “safe harbor” from penalties related to hiring unauthorized workers, as long as the system is used correctly and in good faith.
  • Faster Employment Verification: E-Verify provides quick confirmation of an employee’s work eligibility, usually within seconds or minutes, compared to traditional paper-based I-9 verification. The automated system is integrated with the Form I-9 process, automating parts of the employment eligibility verification process and reducing paperwork.
  • Government & Federal Contract Compliance: Some federal contracts and state laws require employers to use E-Verify, ensuring eligibility for government contracts and avoiding penalties.
  • Deters Fraud: E-Verify checks against government databases, making it harder for individuals to use fake documents to gain employment.
  • Ability to Employ F-1 STEM OPT students and CW-1 workers: Employers enrolled in E-Verify are able to employ F-1 students participating in STEM OPT. Employers who are not enrolled in E-Verify cannot hire or extend employment for student workers for the additional 24-months offered through the STEM OPT program. Additionally, employers seeking to employ foreign workers in the CW-1 category, pursuant to the Workforce Act of 2019, must be enrolled in E-Verify (The CW-1 nonimmigrant visa program permits employers who meet program requirements to hire nonimmigrant workers temporarily in the Commonwealth of the Northern Mariana Island (CNMI or “Commonwealth”) to perform services or labor based on the employer’s need.)

Disadvantages:

  • Increased Administrative Work: Employers must dedicate resources to training staff, ensuring compliance, and handling tentative non-confirmations (TNCs). Once an employer voluntarily enrolls in E-Verify, they must use it for all new hires at that hiring site moving forward. Employers cannot selectively use E-Verify for only some new employees; however, employers are not required to verify existing employees in E-Verify post-enrollment except for certain federal contractors or where state or local law requires it.
  • Potential Database Errors: Mistakes in government databases could lead to incorrect or inconclusive results, leading to delays or complications in the hiring process. If an employee receives a TNC, this can delay the onboarding process and create uncertainty for both the employer and prospective employee. (The E-Verify program provides a procedure so that a new hire can contest a TNC with the appropriate agency while continuing to work on payroll until resolution.)
  • Privacy Concerns: E-Verify involves the collection and storage of sensitive personal information, such as Social Security numbers.
  • System Limitations: E-Verify is not a substitute for I-9s. And, while E-Verify reduces the risk of hiring unauthorized workers, it is not foolproof and cannot detect identity fraud if an employee is using legitimate documents that belong to someone else.
  • No Protection from Immigration Audits: Using E-Verify does not prevent U.S. Immigration and Customs Enforcement (ICE) audits or penalties for I-9 form violations.

E-Verify Compliance: Stricter Enforcement for Employers

It has been reported that DHS has been terminating E-Verify accounts for unresolved Tentative Non-confirmations (TNCs) and non-responsiveness to agency inquiries. In light of this development, employers are advised to:

  • Audit their E-Verify accounts and resolve outstanding TNCs promptly.
  • Ensure designated account managers monitor DHS communications.
  • Be aware that losing E-Verify access could impact federal contracts, operations in certain states, and the ability to hire STEM OPT F-1 students.

Questions?

If you have any questions about the topics above, please reach out to your McCown & Evans attorney for more information.